On December 7, 1999, Local 67, AFSCME, AFL-CIO filed a request with the
Wisconsin
Employment Relations Commission seeking to have an arbitrator appointed to hear and
decide a
dispute pending between it and the City of Racine, Wisconsin. On March 20, 2000, the
Union and
the City requested the Commission appoint William C. Houlihan, a member of its staff, to
hear and
decide the captioned matter. The matter was set for hearing and postponed several times.
Ultimately,
the matter was heard on May 31, 2001, in Racine, Wisconsin. A transcript of the
proceedings was
made and distributed on June 13, 2001. Briefs and a reply brief were submitted and
exchanged by
October 18, 2001.

Markus Dyess, the grievant, has been employed by the City of Racine, as a truck
driver in the
solid waste operation, since September of 1995. As of the date of the events giving rise to
this
proceeding, Mr. Dyess had accumulated a lengthy disciplinary record. There are 13
disciplinary
incidents listed in Mr. Dyess' file in the four-year period between his date of hire and
August, 1999.
Notably, Mr. Dyess has two oral reprimands, two written reprimands, and a one-day
suspension for
"failure to notify of absence from work". Additionally, Mr. Dyess served a two-day,
5½ hour
suspension in January of 1997 for insubordination. That suspension was grieved and
arbitrated. In
sustaining the suspension, the arbitrator found Dyess to have behaved in an insubordinate
fashion,
found that he had challenged a supervisor's authority, that he was angry, and that he was
prone to
not listen. Mr. Dyess also served a five-day suspension in May of 1999 for
insubordination. That
suspension was grieved and arbitrated. In sustaining the five-day suspension, the arbitrator
noted that
the grievant had on three separate instances refused a directive to go home on an overtime
day.

On August 4, 1999, the grievant arrived late for work. The next day, August 5,
1999, the
grievant arrived at work approximately 50 to 55 minutes late. Joe Golden, the
Superintendent of
Streets, determined to issue Dyess a three-day suspension for "failure to notify of absence
from
work". The City has a work rule requiring employees who will be late to work to notify
their
supervision in advance. Dyess had failed to do so. Golden directed Jeff Fidler, who is the
General
Supervisor for the Department of Public Works, to issue the discipline. At the conclusion of
the
workday on August 5, Fidler called Dyess into a conference room where he had arranged to
have
Union steward John Tate present. Fidler handed Dyess the following disciplinary letter:

. . .

ON WEDNESDAY AUGUST 4, 1999 YOU CALLED THE
STREET MAINTENANCE
FIELD OFFICE AT APPROXIMATELY 7:28AM TO NOTIFY SUPERVISION THAT
YOU HAD
OVERSLEPT BECAUSE YOUR ALARM CLOCK DID NOT GO OFF. THE
FOLLOWING DAY
THURSDAY AUGUST 5, 1999 YOU WERE NOT PRESENT FOR THE START OF
YOUR
SCHEDULED 7:00AM WORK SHIFT. AT APPROXIMATELY 7:58AM YOU
REPORTED FOR
WORK AND TOLD YOUR IMMEDIATE SUPERVISOR THAT YOUR ALARM CLOCK
HAD
BEEN SET FOR THE WRONG TIME.

BOTH OF THE ABOVE INCIDENTS
ARE VIOLATIONS OF WORK RULES "A. TIME
CARDS, SEC. 3" AND "B. NOTIFICATION OF ABSENCE, SEC. 1."

Page 3

MA-10903

I HAVE DISCUSSED THIS SITUATION
WITH THE PERSONNEL DIRECTOR AND
WE ARE IN AGREEMENT THAT YOU ARE TO RECEIVE A 3 DAY SUSPENSION
WITHOUT PAY BEGINNING ON FRIDAY AUGUST 6, 1999 AND CONTINUING FOR
MONDAY AUGUST 9, 1999 AND TUESDAY AUGUST 10, 1999.

PLEASE BE ADVISED THAT YOU
HAVE DEVELOPED A VERY POOR WORK
RECORD WHICH INCLUDES NUMEROUS REPRIMANDS AND SUSPENSIONS. I
STRONGLY SUGGEST THAT WHILE YOU ARE SERVING THIS SUSPENSION YOU
EXAMINE YOUR COMMITMENT TO REMAIN AN EMPLOYEE WITH THE CITY OF
RACINE AND UPON YOUR RETURN TO WORK YOU TAKE WHATEVER STEPS
ARE
NECESSARY TO IMPROVE YOUR WORK RECORD. FAILURE TO DO SO WILL
RESULT
IN THE APPROPRIATE DISCIPLINARY ACTION.

The form is dated 8-5-99 and signed by Joe Golden. During the course of the
meeting, Dyess
took issue with some of the representations in the disciplinary memo. Fidler advised Dyess
that he
had not written the memo and was in no position to modify its terms. According to Fidler,
Dyess
became angry and wanted to discuss the memo and have it rescinded. Dyess persisted, and
Fidler
continued to remark that he was in no position to change anything. According to Fidler,
Dyess
interrupted him to tell him that he (Fidler) had a bad attitude and needed to change his
attitude. Fidler
advised Dyess that he had his recourse, and ended the meeting.

The meeting ended, and the three men exited the conference room. Once in the
common
office area, Dyess went to another supervisor, Bill Folstrom, and attempted to engage
Folstrom on
the reprimand. Folstrom testified that he did not understand what Dyess was attempting to
talk to
him about. Folstrom had no part in the discipline, though he was aware of it. According to
Folstrom,
Tate urged Dyess to leave, and Dyess responded that he would not leave, and that he did not
care if
they threw him out. Folstrom described Dyess' attitude as defiant. According to Folstrom,
Tate
again urged Dyess to leave, and the two started to walk out.

Dyess then walked toward Fidler's desk and in response to Fidler indicating that
Dyess would
be entitled to a meeting, Dyess told Fidler that he had a bad attitude, and needed to change
his
attitude. His demeanor was confrontational and intimidating. Dyess pointed his finger at
Fidler and
told him "Don't look at me that way." Ultimately, John Tate persuaded Dyess to leave the
office.

Page 4

MA-10903

The supervisors believed Dyess behavior to be unacceptable in the workplace. They
brought
the matter to James Kozina, the City's Human Resource Director. In response to the
supervisor's
description of Dyess' behavior on August 5, Kozina issued Dyess the following letter:

August 9, 1999

Mr. Markus Dyess

. . .

Dear Mr. Dyess:

This letter is intended to officially notify
you that you are being placed on a 30-calendar day
suspension without pay effective Friday, August 6, 1999 through September 4, 1999 (your
latest 3-day suspension for absenteeism and tardiness is included in the 30-day suspension).

This suspension is based on the totality of
the work record you have compiled with the City
of Racine which includes numerous disciplinary notices, including suspensions, for tardiness,
failure
to notify of absences, insubordination, vehicular accidents and work performance.

In addition to and coupled with these work
rule violations, you have exhibited a blatant
hostility toward and lack of respect for supervision and your fellow employees. You have
created
a disruptive, intimidating and hostile work environment; such behavior can no longer be
tolerated.

This suspension is intended as a "last
chance" opportunity for you to reassess your
employment status with the City of Racine. You will be expected to comply with the
following
standards:

Good attendance and punctuality.

Compliance with all
supervisors' instructions and/or directives

Civility and common
courtesy with fellow employees and supervisors

Adherence to all
departmental and City work rules.

Page 5

MA-10903

You should understand that any sub-performance in the above
areas or other work rule
violations will result in your termination from City employment.

You will be expected to return to work on
Tuesday, September 7, 1999 and any questions
concerning this letter may be directed to the undersigned.

Respectfully,

James
C. Kozina /s/

James
C. Kozina

Personnel Director

Although the letter was prompted by Dyess' behavior of August 5, there is no
specific
reference to that behavior.

ISSUE

The parties stipulated to the following issue:

Did the Employer violate the collective bargaining agreement
when it disciplined the grievant
with a 30-day suspension on August 9, 1999? If so, what is the appropriate remedy?

RELEVANT PROVISIONS OF THE

COLLECTIVE BARGAINING AGREEMENT

ARTICLE II

Management and Union Recognition

. . .

E. Management Rights. The City possesses the
sole right to operate City government and all
management rights repose in it, but such rights must be exercised consistently with the other
provisions of this contract and the past practices in the departments covered by the terms of
this
Agreement unless such past practices are modified by this Agreement, or the City under
rights
conferred upon it by this Agreement, or the work rules established by the City of Racine.
These
rights which are normally exercised by the various department heads include, but are not
limited to,
the following:

Page 6

MA-10903

1. To direct all operations of City
government;

2. To hire, promote,
transfer, assign and retain employees in positions with the City and
to suspend, demote, discharge and take other disciplinary action against employees
for just cause.

. . .

POSITIONS OF THE PARTIES

It is the Employer's contention that the grievant's actions and tirade on August 5,
1999 was
unprovoked, uncalled for and was insubordinate in nature. The Employer contends that the
evidence
is undisputed that the grievant failed to call in on two consecutive days, August 4 and
5, 1999. By
failing to address the merits of the 3-day suspension, the Employer contends that the Union
and
grievant have conceded the work rule infraction of notification of absence, which
demonstrates that
the grievant had no real issue with the 3-day suspension, and thus the grievant's actions and
outburst
on August 5, 1999 were without any merit or justification. Similarly, it cannot be argued
that
somehow the grievant was confused about the work rule requirement to call in, since he had
been
disciplined on five separate occasions for the same infraction, including a one-day
suspension. The
Employer contends that the grievant's actions on August 5, 1999 are exactly the same type of
behavior for which he was disciplined with a two-day, 5.5 hour suspension and another
five-day
suspension for insubordination.

It is the position of the Union that the Employer bears the responsibility for writing a
vague
notice of discipline. The disciplinary process followed in this case is most noteworthy for
what it
failed to convey. The 30-day suspension contains no fresh charge of insubordination.
Neither Kozina
nor Golden ever met with the grievant or his representative before invoking discipline. Due
process
was not followed. The Employer did not conduct a fair investigation because it never
afforded the
grievant an opportunity to be heard prior to determining discipline.

The Union contends that the actual reasons cited in the notice of discipline were
historic in
nature and cumulative. The three-work day suspension was incorporated as a part of the
30-calendar
day suspension. Whereas there were no new or additional incidents cited, the ultimate
discipline
constituted double jeopardy. By not meeting with the grievant, the Employer not only failed
its
obligation to conduct a fair investigation, afford the grievant an opportunity to be heard and
to
confront his accusers, but also failed to follow the concept of corrective discipline.

Page 7

MA-10903

The Union cites authority for the proposition that discipline must stand or fall upon
the
reasons stated in the notice of discipline. The Union cites further authority for the
proposition that
employees are entitled to a precise statement of charges when facing discipline. Surprise and
lack of
adequate notice about the basis for disciplinary action generally prejudice the Union and the
employee
in investigating the charges and preparing a defense. Notices that do not describe the type,
scope,
or nature of the alleged misconduct are also considered to be flawed.

The Union contends that due process requires a fair investigation. One component of
that
is that the employee be given an opportunity to tell his version of the incident. The Union
cites
authority for the proposition that this opportunity must occur prior to the administration of
discipline.
Hearing the employee's side of the story may clear up misunderstandings and even exonerate
the
employee. Requiring an employer to take this step before imposing discipline can give
cooler heads
an opportunity to slow down impulses and arbitrary decisions. In this case, prior to the
arbitration
hearing, the grievant was never allowed to tell his side of the story. At no time prior to
arbitration
was the grievant or his Union afforded an opportunity to confront those who had accused him
of
wrongdoing.

DISCUSSION

There is no dispute in this proceeding as to the propriety of the three-day suspension
imposed
for the grievant's failure to provide notification of his absence.

The testimony of Fidler and Folstrom as to the events of August 5 stands unrebutted.
The
behavior described was inappropriate to the workplace, confrontational and threatening.
Dyess
refused to listen, as Fidler attempted to explain that he had no authority to modify the text of
the
discipline. He challenged his supervisors openly and in the workplace. Mr. Dyess is
fortunate that
Mr. Tate was able to diffuse the situation. No supervisor ever directed Dyess to leave.
Thus, his
failure to leave was not, in and of itself, insubordination. However, his behavior bore strong
parallels
to that for which he has been disciplined in the past.

30 calendar days is a long suspension. The record suggests that the Employer has
imposed
such discipline in the past in the context of "last chance" warnings. In light of
Mr. Dyess' dismal
disciplinary history, I would be inclined to defer to the Employer and sustain even this
lengthy
suspension. However, I do believe the disciplinary process was flawed.

The Union contends that the 30-day suspension letter is vague. The Union is
accurate
in
noting that the letter contains no fresh charge of insubordination. The August 5 incident
precipitated
the 30-day suspension, but is not mentioned in the disciplinary letter. The absence of any
reference
to the event is troublesome. The Employer contends that the intent of the

Page 8

MA-10903

letter was to put Dyess on notice that his entire performance was unacceptable. It is in
that context
that the Union's second claim, that there was no meeting with Mr. Dyess prior to the
imposition of
discipline, must be considered.

The Union accurately points out that there was no meeting afforded Mr. Dyess prior
to the
imposition of the 30-day suspension. I agree with the Union's contention that minimum
notions of
due process demand that the grievant be confronted with the allegation, and afforded an
opportunity
to respond. Here, the incident of August 5 prompted the letter. Dyess was entitled to
confront the
charges relative to his behavior of August 5, and either admit, deny or explain what
occurred. This
is particularly true given the gravity of the discipline imposed, a 30-day suspension. The
letter
accompanying the suspension describes this as a "last chance" warning. The Employer put
Dyess on
notice that the totality of his work performance was lacking. He was directed to modify his
behavior
in numerous and sweeping areas. His failure to do so would lead to his termination. I
believe Mr.
Dyess was entitled to have the Employer's expectations articulated, clarified and reviewed.
That was
not done.

The Union contends that the imposition of a 30-calendar day suspension on top of a
3-work
day suspension constitutes double jeopardy, in the absence of noted intervening behavior. I
disagree.
The 3-day suspension was in response to Mr. Dyess' failure to call in advance of his
absences. The
30-day suspension was prompted by his insubordinate behavior of August 5 and the totality
of his
work record. The disciplines were served concurrently.

I am reducing the 30-calendar-day suspension to a 5-day work suspension. 5 work
days was
the suspension imposed for insubordination in January, 1999. Due to the significant
procedural flaws
in the imposition of the discipline, I am unwilling to allow the City to "progress" beyond the
5-day
disciplinary standard previously issued. If it was the City's intent to put the grievant on a
last chance
notice of his termination, the City had an obligation to confront the grievant with the totality
of his
unacceptable behavior, allow the grievant to respond, and to explain the performance
expectations
required of Mr. Dyess to continue as a City employee.

I am unwilling to void the discipline entirely. Mr. Dyess' behavior was entirely
inappropriate
to the workplace and the same type of behavior previously exhibited. Mr. Dyess did
not dispute
supervisory accounts of the events of August 5. Mr. Tate, who was not called to testify,
observed
what transpired. Mr. Tate's presence eliminated the potential for surprise to the Union.

Under the totality of circumstances, it would send a terrible message to workers and
to line
supervisors for Mr. Dyess' August 5 conduct to escape discipline. The 5-day work
suspension shall
be served in addition to the 3-day work suspension for absenteeism.

Page 10

MA-10903

AWARD

The grievance is sustained.

REMEDY

The Employer is directed to reduce the 30-calendar day suspension to a 5-work day
suspension. The Employer is further directed to refund to Mr. Dyess the monies he lost in
excess of
5 work days (and the additional 3 work days for tardiness), and to modify his personnel file
to reflect
this Award.